Judge for Yourself

“There’s no question that emotions play a big part in determining the outcome of a case,” says retired San Diego superior court judge Norbert Ehrenfreund.

“The appearance of the defendant, for example, and the way he reacts if he’s on the stand. Look at the case of the drugstore manager,” Ehrenfreund says of one of his cases. “A manager of a big store in Linda Vista sees a shoplifter stealing something from the store. The shoplifter runs out, the store manager runs after him.” When the manager confronts the boy, who is around 15 years old, “The boy just laughs at him, punches the manager, and runs off with the merchandise. The manager chases him down the street; the boy easily races him, laughing. The manager has a gun and says, ‘Stop or I’ll shoot! I’m warning you!’ but the boy laughs at him and keeps on running. The manager takes out his gun and shoots in the boy’s direction. It turns out that the bullet he shot hit the ground first, but it bounced up, struck the boy in the neck, and killed him instantly. The law is, if you fire a weapon at somebody in a reckless manner, even if you don’t intend to kill, you’re at least guilty of the felony of involuntary manslaughter because it was a reckless act. But the jury found this man not guilty. One of the reasons, I think, is that he was such a sympathetic character.”

On Saturday, December 6, Ehrenfreund will discuss his new book You Be the Judge: 20 True Crimes and Cases to Solve at D.G. Wills Books in La Jolla. “I have a number of what I thought were interesting cases,” says Ehrenfreund, who wanted to give readers the opportunity to play judge and jury by presenting the facts and transcripts of some of the most controversial real-life cases he has handled in his 30 years as a trial judge. “An interesting case is a case that challenges the law,” he says.

“If a jury finds a defendant in a criminal case ‘not guilty,’ there’s absolutely nothing the judge can do about it — even if we feel they disregarded the law, if we feel the man is guilty and the jury made a mistake,” Ehrenfreund explains. “It is only if we feel the jury has returned a ‘guilty’ verdict, which a judge feels is not supported by the evidence, that we can order a new trial.”

Ehrenfreund says most jurors don’t realize the full extent of their leverage when it comes to deciding the verdict. “It’s called jury nullification — the Supreme Court has ruled that the jury has the power to do that,” says Ehrenfreund. Jury nullification is when a jury decides to disregard the judge’s instructions and acquit a defendant who has violated a law because the jury has found that law to be unjust or not applicable to the case. “Judges don’t tell juries that they have the power to ignore the law or go beyond the law,” says Ehrenfreund, “but they do have the power to do that.”

If Ehrenfreund had the power to rescind a law it would be the “three strikes” statute enacted in 1994. “The sentence could be too harsh in certain situations,” he says. “Say you have a young man who commits a felony at the age of 17 or 18, maybe it’s a burglary, then another burglary a few years later. Then say it goes a long time, maybe 20 or 30 years of peace and law abidingness, and then he commits another crime. That man could be sentenced 25 years to life, even though he’s been leading a law-abiding life for a long time.” The law as it stands, he says, states that “No matter what the circumstances, no matter what the character of this defendant is or anything, we have to send him to prison for 25 years or longer. It’s very costly to fill up our prisons.”

Ehrenfreund says that cases involving battered women are often controversial. He remembers one case in which a woman in East San Diego shot her abusive husband while he was sleeping. “The law doesn’t give her a defense in that case. To exercise self-defense, the threat has to be immediate,” explains Ehrenfreund. “He has to be coming at her, in the act of trying to beat her or kill her when she shoots him. That’s a controversial law because there are some people, especially active feminists and women’s liberation supporters, who think that battered women should have a greater right to act in their defense.”

In a case Ehrenfreund oversaw, a woman was beaten by her husband, and prior to going to bed, he threatened to beat her again in the morning. “There’s sympathy there,” says Ehrenfreund. “But we still can’t go that distance of allowing her to shoot him dead under those circumstances.”

Comments

Geez Barb, I've never heard of jury nullification! Of course I've little experience with the law, never having run afoul. I did do a little jury duty up in San Luis Obispo several years back, a dog bite case. So I really appreciate the info; all the more reason to have a glass of wine this morning.